The ruling, written by a Republican-appointed judge, is an important victory for federalism.

Earlier today, the US Court of Appeals for the Ninth Circuit ruled against the Trump Administration on nearly all the disputed issues in the California "sanctuary state" case. The ruling is an important victory for federalism in the ongoing legal struggle between Trump and various "blue" sanctuary jurisdictions. This case is the latest in a long line of Trump administration defeats in sanctuary cases that have helped make constitutional federalism great again. The implications go well beyond the specific context of immigration.

Like the earlier trial court ruling in the same case, the Ninth Circuit decision emphasizes the important constitutional principle that the federal government cannot compel states to help it enforce federal law. It also adopts an appropriately narrow view of the doctrine that forbids state policies "discriminating" against the federal government and those who deal with it.

The administration filed a lawsuit challenging three recent California laws: Senate Bill 54, which restricts state and local officials from sharing information about immigrants within the state, with federal agencies; Assembly Bill 103, which requires the state attorney general to inspect any facility in the state where immigrants are detained by federal agents while awaiting immigration court dates or deportation; and Assembly Bill 450, which forbids private employers from cooperation with federal Immigration and Customs Enforcement raids and audits unless such cooperation is mandated by a court order or a specific federal law, and requires employers to give notice to employees of any federal immigration-related inspections of employment records.

The federal government claimed that all three bills conflict with federal law and are therefore "preempted," and that many parts of them also violate the doctrine of "intergovernmental immunity," which bars states from "discriminating" against the federal government or "those with whom it deals." In July 2018, a federal district judge ruled in favor of California on two of the three laws in question.

Today's ruling largely follows the reasoning of the district court decision. It too upholds Senate Bill 54 because it does not actually conflict with any federal law. The Trump administration claims that SB 54 violates federal law because it conflicts with 8 U.S.C. Section 1373, a controversial federal law mandating that "a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual." The Ninth Circuit, like the district court, concludes that SB 54 does not violate Section 1373. Thus, it does not reach the question of whether Section 1373 is unconstitutional because it violates Supreme Court precedent ruling that the Tenth Amendment bans federal "commandeering" of state governments to help enforce federal law. Numerous other recent court decisions have concluded that Section 1373 is unconstitutional on that basis, particularly since the Supreme Court's May 2018 ruling in Murphy v. NCAA strengthened the case against Section 1373.

The Ninth Circuit ruling does emphasize that the anti-commandeering rule is an important factor in its relatively narrow interpretation of federal immigration law, so as to uphold SB 54:

The United States' primary argument against SB 54 is that it forces federal authorities to expend greater resources to enforce immigration laws, but that would be the case regardless of SB 54, since California would still retain the ability to "decline to administer the federal program." NewYork [v. United States], 505 U.S. at 177. As the Supreme Court recently rearticulated in Murphy, under the anticommandeering rule, "Congress cannot issue direct orders to state legislatures…"

SB 54 may well frustrate the federal government's immigration enforcement efforts. However, whatever the wisdom of the underlying policy adopted by California, that frustration is permissible, because California has the right, pursuant to the anticommandeering rule, to refrain from assisting with federal efforts. The United States stresses that… Congress expected cooperation between states and federal immigration authorities…. But when questions of federalism are involved, we must distinguish between expectations and requirements. In this context, the federal government was free to expect as much as it wanted, but it could not require California's cooperation without running afoul of the Tenth Amendment.

This reasoning has obvious implications for other situations where states might wish to refuse to help the federal government enforce federal law.

The Ninth Circuit also upholds AB 103 state inspections of federal immigration detention facilities on much the same basis as the district court: the inspections do not "discriminate" against the federal government because they are much the same as those that California requires for other prisons within the state.

On SB 450, the Court of Appeals did not consider the one issue where the district court ruled in favor of the federal government: instituting an injunction against the part of the law that bars employers from voluntarily consenting to ICE raids. The case before the Ninth Circuit was an appeal by the United States against those parts of the district court ruling that went against it, so it does not raise the one issue on which the federal government won in the trial court.

The Ninth Circuit did reaffirm the district court's ruling that SB 450's worker notification requirement is constitutional. It emphasized that the requirement does not "discriminate" against the federal government because it does not treat its agents less favorably than similarly situated private parties:

The Supreme Court has clarified that a state "does not discriminate against the Federal Government and those with whom it deals unless it treats someone else better than it treats them." Washington, 460 U.S. at 544–45. AB 450 does not treat the federal government worse than anyone else; indeed, it does not regulate federal operations at all. Accordingly, the district court correctly concluded that AB 450's employee-notice provisions do not violate the doctrine of intergovernmental immunity.

The Ninth Circuit did rule against California on one small issue where the trial court went the other way. It struck down a provision of AB 103 that required inspections of the circumstances of the detainees apprehension and transfer to the facility in question. Unlike the rest of AB 103, "[t]his is a novel requirement, apparently distinct from any other inspection requirements imposed by California law," and therefore qualifies as discrimination against the federal government, violating the doctrine of "intergovernmental immunity."

I think this part of the Ninth Circuit's ruling is wrong because ICE apprehension and detention of immigrants is not truly analogous to the detention of other kinds of prisoners, including those arrested by state law enforcement. The criticism I made against the district court's ruling on AB 450 applies here too. There is no meaningful state (or private) analogue to federal-government detention of suspected illegal immigrants for deportation, because no private or state agency has the power to deport people with only minimal due process, often so little that the government routinely detains and deports large numbers of people who are actually US citizens.

Like the district court decision this case largely upholds, the Ninth Circuit ruling only addresses the federal government's motion for a preliminary injunction against the three state laws. But, in both cases, the court's ruling prefigures the likely outcome of a final judgment on the merits.

The Ninth Circuit sanctuary state ruling is the latest in a long line of federal court decisions ruling against the Trump administration's efforts to force sanctuary jurisdictions to cooperate with federal enforcement priorities. I review those cases and their significance in my forthcoming Texas Law Review article on Trump-era sanctuary state litigation, and its broader significance.

Some experts, myself included, initially believed that the sanctuary state case presented the most difficult issues of all the Trump-era sanctuary cases, and could well wind up in the Supreme Court. I still think it is the closest of the lot, but I think it is less likely to get taken up by the Supreme Court than before. The fact that an ideologically disparate group of judges have all ruled against the administration on most of the issues in the case suggests that there may be less disagreement on these issues in the judiciary than I expected.

It is significant that Trump's repeated defeats in sanctuary cases have come at the hands of both Republican and Democratic federal judges. Today's ruling is no exception. Judge Milan Smith, Jr. author of the Ninth Circuit opinion, is a Republican George W. Bush appointee. The district court judge who ruled against the administration on most issues in this case is also a GOP appointee. The other two judges on the Ninth Circuit panel are Democratic Obama appointees. When it comes to sanctuary cities, if not some other issues, Chief Justice John Roberts was right to say "[w]e do not have Obama judges or Trump judges, Bush judges or Clinton judges."

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So, what are the latest figures on the reversal rate of the ninth circus? 75%? greater? And noting the Bush appointed judge is pretty weak. Anthony Kennedy was appointed by Reagan. And just as an aside, why are judges/justices appointed by Democrats always reliable liberal block votes but the opposite is never true?

If you go by cases accepted for review by SCOTUS, the ninth is only marginally above the national average (around 75%) and is the third highest across all the circuits.

If you use the total # of cases decided by the Ninth Circuit, the reversal rate is on the order of 0.01% The 9th covers the largest population of all the geographically defined circuits, nearly 1/5th of the US population, nearly double that of the next most populous circuit.

Uh yeah, I guess I meant S.Ct. review, unless there’s another court that can reverse a federal appellate court. (And I obviously don’t mean en banc review because its the same frigging circuit). I guess also I would also question what you deem to be “marginal,” in terms of numbers and relative importance. And, # of cases decided? S.Ct. has only so much time and can only devote so much time to the idiocy generated by this circuit.

Not sure I follow you sport, but my purpose was simply to cite one recent related example of the quality (or lack thereof) of 9th circuit jurisprudence, because statistical numbers alone do not adequately expose the depths of 9th incompetence. Not that sharp today, are we?

The fact that an ideologically disparate group of judges have all ruled against the administration on most of the issues in the case suggests that there may be less disagreement on these issues in the judiciary than I expected.

The fact that a judge was appointed by GW Bush does not establish “ideologically disparate”. Nor is this a classic federalism conflict.

This is a key point, and I agree with the court here: Per the Constitution, Congress has power…

“To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings;-”

You seem to have overlooked the bolded clause: Unless it gets that permission from the state legislature, the federal government is just an ordinary property owner, and the property is subject to state, not federal, jurisdiction.

We are going to get to the point where an executive administration, acting lawfully, will simply have to ignore certain courts and judges. It’s really that simple. We’ve seen that there are enough federal judges ideologically opposed to Trump that virtually anything he ties to do in the execution of his duties can be stopped in court.

I will strongly recommend to the administration that they cease all law enforcement assistance to the state of California.

The federal judiciary is basically a conspiracy against the people at this stage.

You sound like a 1930’s anarchist. Not great thinkers, those.

Living in a society means you don’t get to insist everyone kowtow to your understanding, even if you feel you are correct lots and lots. Sucks you don’t like the way our system of government is set up. I guess maybe move?

You legit seem to have a serious issue with a fundamental part of modern American society. Well, more than one, but lets focuse on this one. The point of the comment is that your embrace of America despite it being an oligarchy I guess shows that perhaps your position isn’t quite as firm as your write it to be.

I am still struggling with the conclusion that SB 450 does not present an obstacle to the enforcement of immigration laws:

“The cases to which the United States cites concerned either the disruption of a federal relationship or the undermining of a federal operation. Here, there is indisputably a federal relationship, but it is between federal immigration authorities and the employers they regulate— not between employers and their employees. AB 450 impacts the latter relationship, not the former, and imposes no additional or contrary obligations that undermine or disrupt the activities of federal immigration authorities.”

Seriously, what is this? A law requiring an employer to tip off illegal alien employees to an impending immigration inspection doesn’t impact the “employer-federal government” relationship? How can anybody say this with a straight face? It seems like this is textbook obstacle preemption. No?

I still get really confused as to when the Federal government can overrule States and when it can’t. Arizona can be forbidden to enforce Federal immigration law, but states can permissibly act to frustrate it? “As the Supreme Court recently rearticulated in Murphy, under the anticommandeering rule, ‘Congress cannot issue direct orders to state legislatures…'” Would this not overrule Plyler v. Doe, 457 U.S. 202 (1982)?

I too, am confused. How does California requiring employers to tip-off illegal alien employees before a federal immigration inspection not an obstacle to federal enforcement of immigration laws? That is exactly what AB 450 mandates but, inexplicably, the Ninth Circuit ruled that it was not impediment to the “employer-federal government” relationship at all.

To quote:

“The cases to which the United States cites concerned either the disruption of a federal relationship or the undermining of a federal operation. Here, there is indisputably a federal relationship, but it is between federal immigration authorities and the employers they regulate—not between employers and their employees. AB 450 impacts the latter relationship, not the former, and imposes no additional or contrary obligations that undermine or disrupt the activities of federal immigration authorities.”

Apparently, in the view of the Ninth Circuit, as long as a State law doesn’t explicitly require the violation of a federal immigration law, to the letter, it can require state agencies and private entities to subvert the Congressional goals in the enforcement of immigration laws in every other imaginable way.

I suppose, under this reading, California can pass a law requiring employers to erect inaccessible underground bunkers and to harbor illegal aliens there during an inspection because there is nothing in federal immigration expressly prohibiting such a practice.

This ruling seems, to me, to be much to clever for its own good. In other words, bad law.

Yes, I can’t for the life of me see how a state can mandate that private citizens actively thwart federal law enforcement, or refuse to cooperate with it voluntarily.

I don’t even see how the requirement that state employees not voluntarily notify the federal government even on their own time can stand. Working for the state government doesn’t entitle them to control you as a private citizen outside your working hours.

This is nullification act territory, and while the 9th circuity might approve of it, I expect the Supreme court will view these statutes much less positively.

I don’t believe Arizona’s laws were struck down entirely, just parts of them. Those were the parts related to direct enforcement (arrests, etc.) and the parts that literally criminalized violations of the Immigration and Nationality Act, iirc. Those were held to be preempted. They upheld the provision that required verification of a person’s immigration status (subject to Fourth Amendment limitations). There were also provisions that weren’t challenged at all.

So states are free to order their employees to help or not help federal officials, but a state cannot be ordered to order their employees to help or not help. They also can’t do the work themselves.

I think the 9th circuit made the right call on the provision they struck down, but on slightly different grounds. As Professor Somin said, immigration detention is a uniquely federal matter that can’t be compared to things that the state or private entities do. While this lack of comparability could be used as an argument that California isn’t “discriminating” against the federal government, as Professor Somin argues, it would also seem to be evidence California is attempting to interfere with the Federal government in the conduct of its own uniquely Federal business.

While the Federal government cannot require a state or the state’s officials to help them, it can require the state and its officials not to interfere. Punishing private parties for voluntarily consenting to or assisting with ICE raids clearly goes beyond the state’s control of its own officials, and also goes beyon state regulation of a commercial business or activity that the federal government also happens to do. It constitutes direct interference with uniquely federal law enforcement activities.

That a state cannot do.

The boundaries here have to spring from general rules about federalism and federal/state relations. They cannot be bent at whim to include policies one likes and exclude policies one doesn’t. The 9th Circuit properly expressed neutrality, indicating no preference for either the United States’ or California’s policy views, focusing only on their respective powers and rights.